Home COMMONWEALTH vs. NICHOLAS D'AGOSTINO (and a companion case. [Note 1])

348 Mass. 778

December 3 1964.

S. Myron Klarfeld for the defendant D'Agostino.

Murray P. Reiser, Assistant District Attorney, for the Commonwealth.

At a jury trial under G. L. c. 278, Sections 33A-33G, the defendants, represented by counsel, having been found guilty on indictments charging larceny, conspiracy to commit larceny, assault, and unarmed robbery, were sentenced on the robbery charge only. No motions for directed verdicts were made and no exceptions were taken to the judge's charge. On these appeals the only assignments of error based on exceptions are the denial of motions for new trial made by new counsel. These assignments do not present any question of law raised during the trial, Commonwealth v. Gricus, 317 Mass. 403 , 405, and, since the crimes of which they stand convicted are not capital, no review of the whole case is required under G. L. c. 278, Section 33E. Counsel having urged, however, that there has been a miscarriage of justice (Commonwealth v. Dascalakis, 246 Mass. 12 , 25), the entire record has been reviewed, and no basis to disturb the verdicts has been found on evidence that the defendants at 1:30 A.M. on December 12, 1963, near the junction of Routes 1 and 128 in the vicinity of Saugus, intercepted a farmer and his helper who were en route from Canada with a load of 600 Christmas trees consigned to a buyer in Springfield, coerced them to proceed to Boston, and there, by threats inducing fear and deception practised by a third defendant, caused them to give up the trees.

Judgment affirmed in each case.


[Note 1] The companion case is by the Commonwealth against Salvatore Polsonetti.


348 Mass. 778

December 3, 1964

The Land Court ordered title to certain land in Brewster (the locus) registered as belonging to the substitute petitioners. Because the case is here by appeal, rather than on a bill of exceptions, the sole question is whether the judge's order is correct on the facts stated, or incorporated by reference, in the decision. Harrington v. Anderson, 316 Mass. 187 , 192-193; Comeau v. Manzelli, 344 Mass. 375 , 376. The judge found that in 1917, one Saint, the respondent's predecessor in title, sought to register title to the locus, claiming by adverse possession. That petition, to which Dennis E. Dugan (the original petitioner in the present case) was a party, was dismissed, thus establishing, as between the parties to that petition and their privies, that Saint's attempted acts of dominion gave him no title to the locus. See G. L. c. 185, Section 44. The present petition, filed in 1924, terminated any acquiescence by Dugan (and those claiming

Page 779

under him) in subsequent attempted acts of dominion. Baumgartner v. Doherty, 286 Mass. 583 , 586. Although exhibits in evidence have been incorporated in the decision by reference for purposes of this appeal, the record does not show that all the evidence is before us. The judge found that the substitute petitioners hold title to the locus as tenants in common. Facts found by him warrant the conclusion that they hold it by adverse possession, even if it be assumed that they do not have a clear record title. The judge's conclusions are consistent with, and are warranted by, the facts stated in the decision.

Decision affirmed.